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District Court of Appeal, First District, Division 2, California.


Civ. 9398.

Decided: November 19, 1934

Hugh L. Hagan, of Oakland, for appellant. Decoto & St. Sure, of Oakland, for respondent.

Plaintiff sued for damages for personal injuries and the jury returned a verdict for the defendant.

The evidence upon which the verdict was based shows that plaintiff alighted from a north-bound street car at about 9:30 p. m. at a point within a safety zone, walked to the north end of the safety zone, waited for some automobiles to pass, then walked due west to the center of the street. There she stopped to let south-bound machines pass, and while standing at that point stepped back in the path of defendant's machine which was traveling north on the north-bound street car tracks. There is no evidence of negligence of any character on the part of the defendant which would support a verdict for the plaintiff. There is a showing of contributory negligence on the part of the plaintiff which would support a verdict against her. The appeal seeks a retrial of these issues of fact in this court, but to do this we would have to disregard the settled rules which leave these issues with the jury.

Criticism is directed to the refusal of the trial court to give certain proposed instructions relating to the relative rights of pedestrians and autoists at street crossings. In each instance the proposed instruction assumed a state of facts not supported by the record, and in each instance the jury was fully instructed on the issues arising from the evidence. In some instances the rejected instructions related to matters which were fully covered in the instructions given. Nothing is clearer than that, when the jury is fully and clearly instructed on the issues involved, a reversal cannot be had because of the failure to give some cumulative instruction requested by the appellant.

The cause was fairly and fully tried and no error appears in the record.

The judgment is affirmed.

NOURSE, Presiding Justice.


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